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Am. Sub. S. B. No. 97As Passed by the HouseAs Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Nein, Wachtmann, Mumper, White, DiDonato, Austria, Amstutz, Coughlin, Finan, Harris, Hottinger, Spada, Armbruster, Randy Gardner, Robert Gardner, Carnes, Johnson
REPRESENTATIVES Calvert, Goodman, G. Smith, Schaffer, Faber, Olman, Fessler, Husted, Jolivette, Wolpert, Evans, Krupinski, Blasdel, DeWine, Stapleton, Schmidt, Hoops, Schuring, Clancy, Lendrum, Flowers, Hughes, Reidelbach, Seitz, Raga, Hollister, Roman, Niehaus, Hagan, Collier, Allen, Driehaus, Ogg, Otterman, Peterson, Young, Damschroder, Williams, Latta, Webster, Schneider, Kilbane, Metelsky, Gilb, Core, Carey, Rhine, Womer Benjamin, Sferra, Widowfield, Coates, Carmichael, Metzger, White, Flannery, Key, Distel, Salerno
A BILL
To amend sections 3937.18, 3937.181, and 3937.182 of
the Revised Code to revise the Uninsured and
Underinsured Motorist Coverages Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3937.18, 3937.181, and 3937.182 of
the Revised Code be amended to read as follows:
Sec. 3937.18. (A)
No automobile liability or motor
vehicle
liability
Any policy of insurance
insuring
delivered or issued for
delivery in this state with respect to any motor vehicle
registered or principally garaged in this state that insures
against loss
resulting from
liability imposed by law for bodily
injury or
death suffered by
any person arising out of the
ownership,
maintenance, or use of a
motor vehicle
shall be
delivered or
issued for delivery in this
state with respect to any
motor
vehicle registered or principally
garaged in this state
unless
both of the following coverages are
offered to persons
insured
under the policy due to bodily injury
or death suffered
by
such insureds: (1) Uninsured motorist coverage, which shall be in an
amount
of coverage equivalent to the automobile liability or
motor
vehicle liability coverage and shall provide protection for
bodily
injury, sickness, or disease, including
death under provisions
approved by the
superintendent of insurance, for the protection of
insureds thereunder
who are legally entitled to recover
from
owners or operators of uninsured motor vehicles because of
bodily
injury, sickness, or disease, including death, suffered by
any
person insured under the policy.
For purposes of division (A)(1) of this section, an
insured
is legally entitled to recover if the insured is able
to prove the
elements of the insured's claim that are necessary to
recover from
the owner or operator of the uninsured motor vehicle. The fact
that the owner or operator of the uninsured motor vehicle has an
immunity under
Chapter 2744. of the Revised Code or a diplomatic
immunity that could be
raised
as a defense in an action
brought
against the
owner or operator by
the insured does not
affect the
insured's right to recover under
uninsured
motorist coverage.
However, any other type of statutory or common law immunity that
may be a
defense for the owner or operator of an uninsured motor
vehicle shall also be
a
defense to an action brought by the
insured to recover under, may, but is not required to, include
uninsured
motorist
coverage, underinsured motorist coverage, or
both uninsured and underinsured motorist coverages.
Unless otherwise defined in the policy or any endorsement
to the policy, "motor vehicle," for purposes of the uninsured
motorist coverage, underinsured motorist coverage, or both
uninsured
and
underinsured motorist coverages, means
a
self-propelled
vehicle
designed for use and principally used on
public roads,
including
an automobile, truck, semi-tractor,
motorcycle, and bus.
"Motor
vehicle" also includes a motor home,
provided the motor
home is
not stationary and is not being used as
a temporary or
permanent
residence or office. "Motor vehicle" does
not include a
trolley,
streetcar, trailer, railroad engine,
railroad car,
motorized
bicycle, golf cart, off-road recreational
vehicle,
snowmobile,
fork lift, aircraft, watercraft, construction
equipment, farm
tractor or other vehicle designed and principally
used for
agricultural purposes, mobile home, vehicle traveling on
treads or
rails, or any similar vehicle.
(B) For purposes of any uninsured motorist coverage
included in a policy of insurance, an "uninsured motorist" is the
owner or operator of
a motor vehicle if any of the following
conditions applies:
(1) There exists no bodily injury liability bond or
insurance policy covering the owner's or operator's liability to
the insured.
(2) The liability insurer denies coverage to the owner or
operator, or is or becomes the subject of insolvency proceedings
in any state.
(3) The identity of the owner or operator cannot be
determined, but independent corroborative evidence exists to prove
that the bodily injury, sickness, disease, or death of the insured
was proximately caused by the negligence or intentional actions of
the unidentified operator of the motor vehicle. For purposes of
division (B)(3) of this section, the testimony of any insured
seeking recovery from the insurer shall not constitute independent
corroborative evidence, unless the testimony is supported by
additional evidence.
(4) The owner or operator has diplomatic immunity.
(5) The owner or operator has immunity under Chapter 2744.
of the Revised Code.
An "uninsured motorist" does not include the owner or
operator of a motor vehicle that is self-insured within the
meaning of the financial responsibility law of the state in which
the motor vehicle is registered. (2) Underinsured
(C) If underinsured motorist coverage,
which shall be in an
amount of coverage equivalent
to
is
included
in a policy of insurance, the
automobile liability or
motor
vehicle liability
underinsured motorist coverage
and shall provide
protection for
insureds thereunder for bodily injury,
sickness, or
disease,
including death, suffered by any
person insured under the
policy,
where the limits of coverage available for payment to the
insured
under all bodily injury liability bonds and insurance
policies
covering persons liable to the insured are less than the
limits
for the
insured's uninsured
underinsured motorist coverage.
Underinsured
motorist coverage
in this state is not and shall not
be excess
insurance
coverage to
other applicable liability
coverages, and shall
be provided only
to afford
provide the
insured an amount of protection not greater than
that which would
be available under the insured's uninsured
motorist coverage if
the person or persons liable
to the insured were uninsured
at the
time of the accident. The policy limits of the
underinsured
motorist coverage shall be reduced by those amounts
available for
payment under all applicable bodily injury
liability
bonds and
insurance policies covering persons liable to
the
insured.
(B) Coverages offered under division (A) of this section
shall be written for the same limits of liability. No change
shall be made in the limits of one of these coverages without an
equivalent change in the limits of the other coverage.
(C) A named insured or applicant may reject or
accept
both
coverages as offered under division (A) of this section, or
may
alternatively select both such coverages in accordance with a
schedule of
limits approved by the superintendent.
The schedule
of limits approved by the superintendent
may permit a named
insured or applicant to select uninsured and
underinsured
motorists coverages with limits on such coverages
that are less
than the limit of liability coverage provided by
the automobile
liability or motor vehicle liability policy of
insurance under
which the coverages are provided, but the limits
shall be no less
than the limits set forth in section 4509.20 of the Revised Code
for bodily injury or death.
A named insured's or applicant's
rejection of both coverages as
offered under division (A) of this
section, or a named
insured's or applicant's selection of such
coverages in
accordance with the schedule of limits approved by
the
superintendent, shall be in writing and shall be signed by the
named insured or applicant. A named insured's or applicant's
written, signed rejection of both coverages as offered under
division (A) of this section, or a named insured's or
applicant's
written, signed selection of such coverages in accordance with the
schedule of limits approved by the superintendent, shall be
effective on the day signed, shall create a presumption of an
offer of
coverages consistent with division (A) of this section,
and shall be binding on all other named insureds, insureds, or
applicants.
Unless a named insured or applicant requests
such coverages
in writing, such coverages need not be provided in
or made
supplemental to a policy renewal or a new or replacement
policy
that provides continuing coverage to the named insured or
applicant where a named insured or applicant has
rejected such
coverages in connection with a policy
previously
issued to the
named insured or applicant by the same
insurer or affiliate of
that insurer. If a named insured or applicant
has selected
such
coverages in connection with a policy
previously issued to the
named insured or applicant by the
same insurer or affiliate of
that insurer, with limits in accordance
with the schedule of
limits
approved by the superintendent, such coverages
need not be
provided
with limits in excess of the limits of liability
previously
issued
for
such coverages, unless a
named insured or
applicant requests in
writing higher limits of liability for such
coverages
For purposes of underinsured motorist coverage, an
"underinsured motorist" does not include the owner or operator of
a motor vehicle that has applicable liability coverage in the
policy under which the underinsured motorist coverage is provided.
(D)
For the purpose of this section, a motor vehicle
shall
be
deemed uninsured in either of the following
circumstances: (1) The liability insurer denies coverage or is or
becomes
the subject of insolvency proceedings in any
jurisdiction;
(2) The identity of the owner and operator of the motor
vehicle
cannot be determined, but independent corroborative
evidence exists to prove
that the bodily injury, sickness,
disease, or death of the insured was
proximately caused by the
negligence or intentional actions of
the unidentified operator of
the motor vehicle. For purposes of
this division, the testimony
of any insured seeking recovery
from the insurer shall not
constitute independent corroborative
evidence, unless the
testimony is supported by additional
evidence
With respect to the
uninsured motorist coverage, underinsured motorist coverage, or
both
uninsured and underinsured motorist coverages included in a
policy
of insurance, an insured
shall be required to prove all
elements
of the insured's claim
that are necessary to recover from
the
owner or operator of the
uninsured or underinsured motor
vehicle.
(E)
In the event of payment to any person under the
coverages
offered under this section and subject to
the
terms and
conditions
of such coverages, the insurer making such payment to
the extent
thereof is entitled to the proceeds of any settlement
or judgment
resulting from the exercise of any rights of recovery
of such
person against any person or organization legally
responsible for
the bodily injury or death for which such payment
is made,
including any amount recoverable from an insurer which
is
or
becomes the subject of insolvency proceedings, through such
proceedings or in any other lawful manner. No insurer shall
attempt to recover any amount against the insured of an insurer
which is or becomes the subject of insolvency proceedings, to the
extent of those rights against such insurer which such insured
assigns to the paying insurer. (F) The
uninsured motorist coverage, underinsured motorist
coverage, or both uninsured and underinsured motorist coverages
offered
under this section
included in a policy of insurance shall
not be
made subject to an
exclusion or reduction in
amount because
of
any
workers'
compensation benefits payable as a
result of the
same
injury or
death.
(G)(F) Any
automobile liability or motor vehicle liability
policy of insurance
that includes
uninsured motorist coverage,
underinsured motorist coverage, or both uninsured and underinsured
motorist coverages
offered under
division
(A) of this section
or
selected in accordance with division (C) of
this section
may,
without regard to any premiums
involved, include
terms and
conditions that preclude any and all
stacking of such
coverages,
including but not limited to:
(1) Interfamily stacking, which is the aggregating of the
limits of such coverages by the same person or two or more
persons, whether family members or not, who are not members of
the
same household; (2) Intrafamily stacking, which is the aggregating of the
limits of such coverages purchased by the same person or two or
more family members of the same household. (H)(G) Any
automobile liability or motor vehicle liability
policy of insurance
that includes
uninsured motorist coverage,
underinsured motorist coverage, or both uninsured and underinsured
motorist coverages
offered under
division
(A) of this section
or
selected in
accordance with division (C) of
this section
and that
provides a limit of
coverage for payment
for
of
damages for bodily
injury, including
death, sustained by any one
person in any one
automobile
accident,
may, notwithstanding
Chapter 2125. of the
Revised Code,
include
terms and conditions to
the effect that all
claims
resulting from
or arising out of any
one person's bodily
injury,
including death,
shall collectively be
subject to the
limit of
the policy
applicable to bodily injury,
including death,
sustained by one
person, and, for the purpose of
such policy
limit
shall constitute
a single claim. Any such
policy limit
shall be
enforceable
regardless of the number of
insureds, claims
made,
vehicles or
premiums shown in the
declarations or policy,
or
vehicles involved
in the accident.
(H) Any policy of insurance that includes uninsured motorist
coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist
coverages may include terms and conditions
requiring that, so long as the insured has not prejudiced the
insurer's subrogation rights, each
claim or suit for uninsured
motorist coverage, underinsured motorist coverage, or both
uninsured and underinsured motorist coverages be
made or brought
within three years after the date of the accident
causing the
bodily injury, sickness, disease, or death, or within one year
after the liability insurer for the owner or operator of the motor
vehicle liable to the insured has become the subject of insolvency
proceedings in any state, whichever is later. (I)
Nothing in this section
shall prohibit the inclusion
Any
policy of
insurance that includes uninsured motorist coverage,
underinsured motorist coverage
in
any, or both uninsured
and
underinsured motorist
coverage
provided in
compliance with this
section. (J) The coverages
offered under division (A) of this
section
or selected in accordance with division (C) of this section
may
include terms and conditions that preclude coverage for bodily
injury or
death suffered by an insured under
specified
circumstances, including but not limited to any of the following
circumstances:
(1) While the insured is operating or occupying a motor
vehicle owned by,
furnished to, or available for the regular use
of
a named insured, a
spouse, or a resident relative of a named
insured, if the motor vehicle is not
specifically identified in
the policy under which a claim is made, or is not a
newly acquired
or
replacement motor vehicle covered under the terms of the policy
under which
the
uninsured motorist coverage, underinsured motorist
coverage, or both uninsured and underinsured motorist coverages
are
provided; (2) While the insured is operating or occupying a motor
vehicle without a
reasonable belief that the insured is entitled
to do so, provided that under
no circumstances will an insured
whose license has been suspended, revoked, or
never issued, be
held to have a reasonable belief that the insured is entitled
to
operate a motor vehicle; (3) When the bodily injury or death is caused by a motor
vehicle operated by any person who is specifically excluded from
coverage for bodily injury liability in the policy under which
the
uninsured motorist coverage, underinsured motorist coverage, or
both
uninsured and underinsured motorist coverages are provided; (4) While any employee, officer, director, partner, trustee,
member, executor, administrator, or beneficiary of the named
insured, or any relative of any such person, is operating or
occupying a motor vehicle, unless the employee, officer, director,
partner, trustee, member, executor, administrator, beneficiary, or
relative is operating or occupying a motor vehicle for which
uninsured motorist coverage, underinsured motorist coverage, or
both
uninsured and underinsured motorist coverages are provided in
the
policy;
(5) When the person actually suffering the bodily injury,
sickness, disease, or death is not an insured under the policy.
(J) In the event of payment to any person under the
uninsured motorist coverage, underinsured motorist coverage, or
both
uninsured and underinsured motorist coverages, and subject to
the
terms and conditions of that coverage, the insurer making such
payment is entitled, to the extent of the payment, to the proceeds
of any settlement or judgment resulting from the exercise of any
rights of recovery of that person against any person or
organization legally responsible for the bodily injury or death
for which the payment is made, including any amount recoverable
from an insurer that is or becomes the subject of insolvency
proceedings, through such proceedings or in any other lawful
manner. No insurer shall attempt to recover any amount against
the insured of an insurer that is or becomes the subject of
insolvency proceedings, to the extent of those rights against the
insurer that the insured assigns to the paying insurer. (K)
As used
Nothing in this section,
"uninsured motor
vehicle" and
"underinsured motor vehicle" do not
include any of
the following
motor vehicles: (1) A motor vehicle that has applicable
liability coverage
in the
policy under which
shall prohibit the
uninsured and
inclusion of underinsured motorist
coverages are
provided;
(2) A motor vehicle owned by a political subdivision, unless
the
operator of the motor vehicle has an immunity
under Chapter
2744. of the Revised Code that could
be raised as a defense in an
action brought against the operator
by the insured;
(3) A motor vehicle self-insured within the meaning of the
financial
responsibility law of the state in which the motor
vehicle is registered
coverage in any uninsured motorist coverage
included in a policy of insurance.
(L)
As used in this section,
"automobile liability or motor
vehicle liability policy of insurance" means either of the
following: (1) Any policy of insurance that serves as proof of
financial
responsibility, as proof of financial responsibility is
defined by division
(K) of section 4509.01 of the Revised Code,
for owners or operators of the
motor
vehicles specifically
identified in the policy of insurance;
(2) Any umbrella liability policy of insurance written as
excess over one
or more policies described in division (L)(1) of
this section
The superintendent of insurance shall study the
market availability of, and competition for, uninsured and
underinsured motorist coverages in this state and shall, from time
to time, prepare status reports containing the superintendent's
findings and any recommendations. The first status report shall
be prepared not later than two years after the effective date of
this amendment. To assist in preparing these status reports, the
superintendent may require insurers and rating organizations
operating in this state to collect pertinent data and to submit
that data to the superintendent.
The superintendent shall submit a copy of each status
report to the governor, the speaker of the house of
representatives, the president of the senate, and the chairpersons
of the committees of the general assembly having primary
jurisdiction over issues relating to automobile insurance.
Sec. 3937.181. (A) No
automobile liability or motor
vehicle
liability policy of insurance
offering uninsured and
underinsured
motorist coverages under
described in division (A) of section
3937.18 of the
Revised Code
that includes uninsured motorist
coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist coverages shall be delivered or issued for
delivery unless
coverage is also made available for damage to, or
the destruction
of, any
automobile or motor vehicle specifically
identified in the
policy, for the protection of those persons
insured under the
policy who are legally entitled to recover for
the damage to or
destruction of any
automobile or motor vehicle
specifically
identified in the policy from the owner or operator
of an
uninsured motor vehicle. (B) The coverage made available under this section need
not
exceed the lesser of seventy-five hundred dollars or the
amount
otherwise available from the policy for damages to, or the
destruction of, the
automobile or motor vehicle. The coverage
shall be subject to a maximum two-hundred-fifty-dollar
deductible.
The losses recoverable under this section shall be
limited to
recovery for that destruction of or damage to the
automobile or
motor vehicle specifically identified in the policy
directly
caused by an uninsured
automobile or motor vehicle whose
owner or
operator has been identified. (C) If an insured has a policy containing collision
coverage
covering damages caused by an uninsured
automobile or
motor
vehicle, the insured's insurer need not make coverage
available
under this section. (D) An insurer making payments to an insured under the
coverage offered under division (A) of this section shall be
entitled, to the extent of those payments and subject to the
terms
and conditions of the coverage, to the proceeds of any
settlement
or judgment resulting from the exercise of any rights
of recovery
by the insured against the person or organization
legally
responsible for the injury or destruction of the
property,
including any amounts recoverable from an insurer that
is or
becomes the subject of insolvency proceedings, through such
proceedings or in any other lawful manner. No insurer shall
attempt to recover any amount
against
from the insured of an
insurer
that is or becomes the subject of insolvency proceedings,
to the
extent of
his
those rights against
such
the insurer
which
such
that the insured
assigns to the paying insurer.
Sec. 3937.182. (A) As used in this section,
"policy"
includes an endorsement. (B) No policy of automobile or motor vehicle insurance
that
is covered by sections 3937.01 to 3937.17 of the Revised
Code,
including, but not limited to, the
uninsured motorist coverage,
underinsured motorist coverage, or both uninsured and
underinsured
motorists
motorist coverages
included in such a policy as
required
authorized by
section
3937.18 of the Revised Code, and that is
issued by an
insurance
company licensed to do business in this
state, and no
other policy
of casualty or liability insurance that
is covered
by sections
3937.01 to 3937.17 of the Revised Code and
that is so
issued,
shall provide coverage for judgments or claims
against an
insured
for punitive or exemplary damages. (C) This section applies only to policies of automobile,
motor vehicle, or other casualty or liability insurance as
described in division (B) of this section that are issued or
renewed on or after the effective date of this section.
Section 2. That existing sections 3937.18, 3937.181, and
3937.182 of the Revised Code are hereby repealed.
Section 3. In enacting this act, it is the intent of the
General Assembly to do all of the following: (A) Protect and preserve stable markets and reasonable rates
for automobile insurance for Ohio consumers; (B) Express the public policy of the state to: (1) Eliminate any requirement of the mandatory offer of
uninsured motorist coverage, underinsured motorist coverage, or
both
uninsured and underinsured motorist coverages; (2) Eliminate the possibility of uninsured motorist
coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist coverages being implied as a matter of law
in any insurance policy; (3) Provide statutory authority for the inclusion of
exclusionary or limiting provisions in uninsured motorist
coverage, underinsured motorist coverage, or both uninsured and
underinsured
motorist coverages; (4) Eliminate any requirement of a written offer, selection,
or rejection form for uninsured motorist coverage, underinsured
motorist coverage, or both uninsured and underinsured motorist
coverages from any transaction for an insurance policy; (5) Ensure that a mandatory offer of uninsured motorist
coverage, underinsured motorist coverage, or both uninsured and
underinsured motorist coverages not be construed to be required by
the provisions of section 3937.181 of the Revised Code, as amended
by this act, that make uninsured motorist property damage coverage
available under limited conditions. (C) Provide statutory authority for provisions limiting the
time period within which an insured may make a claim under
uninsured motorist coverage, underinsured motorist coverage, or
both uninsured and underinsured motorist coverages to three years
after the
date of the accident causing the injury; (D) To supersede the holdings of the Ohio Supreme Court in
those cases previously superseded by Am. Sub. S.B. 20 of the 120th
General Assembly, Am. Sub. H.B. 261 of the 122nd General Assembly,
S.B. 57 of the 123rd General Assembly, and Sub. S.B. 267 of the
123rd General Assembly; (E) To supersede the holdings of the Ohio Supreme Court in
Linko v. Indemnity Ins. Co. of N. America (2000), 90 Ohio St. 3d
445,
Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio
St. 3d 660,
Schumacher v. Kreiner (2000), 88 Ohio St. 3d 358,
Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St. 2d
431,
Gyori v. Johnston Coca-Cola Bottling Group, Inc. (1996), 76
Ohio St. 3d 565, and their progeny.
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